Citation Nr: 19166348 Decision Date: 08/27/19 Archive Date: 08/27/19 DOCKET NO. 11-32 716 DATE: August 27, 2019 ORDER Entitlement to service connection for a low back disability is denied. FINDING OF FACT The Veteran’s low back disability, was not manifested during his active military service, is not shown to be causally or etiologically related to his active military service, and arthritis is not shown to have manifested within one year from the date of his separation from the military. CONCLUSION OF LAW The criteria to establish service connection fora low back disability have not been met. 38 U.S.C.§§ 1131, 5107 (2012); 38 C.F.R.§§ 3.102, 3.303, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § § 20.900 (c). 38 U.S.C. § 7107 (a)(2). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In August 2013, the Veteran appeared at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. This matter was previously before the Board in October 2014, July 2017, and March 2018 at which time the Board issued a decision denying the claim. The Veteran then appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). In January 2019, the Court granted a Joint Motion for Remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties), vacating the March 2018 decision concerning the denial of service connection for a low back disability and remanding the matter to the Board for compliance with the instructions in the JMR. Entitlement to service connection for a low back disability. Generally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). The JMR found that the Board's previous denial of this claim improperly failed to consider the positive medical opinions of Dr. Shams Qureshi from July 1995 and April 1996. In addition, the JMR noted that the Board did not adequately consider the Veteran's lay statements concerning continuity of symptomatology of the Veteran’s diagnosed arthritis. The JMR also found that the March 2018 denial did not include an adequate statement of reasons or bases fully addressing why the probative value of the Veteran’s 1968 denial of symptoms at discharge outweighed the two in-service complaints of low back symptoms and eight post-service complaints of low back symptomatology between 1990 and 2017 which identified a 1967 fall from a truck. Lastly, the JMR identified that the Board’s decision should have included a credibility determination regarding the Veteran’s statements that he injured his back from a fall in service. Facts Service treatment records indicate that upon enlistment, the Veteran’s spine and musculoskeletal system were evaluated as normal. He reported a football related injury during high school, however did not elaborate as to the nature of injury. Service treatment records do not contain a diagnosis of or treatment for a back injury, or document a fall. At a sick bay visit in 1966, the Veteran reported back pain in the area of the kidneys. A renal infection was considered as well as back strain. A September 1967 treatment note mentioned a history of venereal disease, a questionable urinary tract infection, low back pain and spasms. Lumbar spine films were ordered, and according to September 1967 results, the findings were normal. Upon examination in April 1968 for discharge from service, the Veteran specifically denied recurrent back pain. The spine and musculoskeletal system were evaluated as normal. Post-service, the Board notes that the Veteran first filed for a low back disability claim in 1969. This February 1969 filing merely identifies a “back injury” with no history or identification of symptoms. The Veteran failed to appear for an October 1969 VA examination and the claim was denied. In 1971 a VA examination was conducted for the Veteran’s prostatitis claim, without any spinal evaluation. The earliest post-service medical record of evidence is the medical history from the New Jersey Transit Bus Operations beginning in 1986. In January 1986 the Veteran sustained an injury and was treated for back pain. In April 1989, it was noted that he had severe low back pain following a charter drive to Washington the previous day, which the Veteran “related the pain in his back to an accident of 1/28/86.” A note from 1991 documents the Veteran’s reports of back spasms off and on since the accident of 1986. At a VA examination in 1990, the Veteran reported injuring his back in service. He was diagnosed with a lumbar strain. A September 1991, medical report from Dr. Haselkorn, reveals that the Veteran had been his patient for several years. A history given at this time relates that the “original problem dates back to 1967 when he fell off the back of a truck while he was in service.” The document also reflects the Veteran had worked as a bus driver and had to sit for prolonged periods and subsequently had to stop and stretch to relieve soreness and aching in his back. An impression of chronic lumbosacral strain was rendered. In 1992, the Veteran provided testimony before a hearing officer at the RO. He testified he sustained trauma to his back while lifting a roll of carpet while employed, several months following discharge. He related that the football injury prior to service was minor and did not affect his back. He reported working installing carpets three weeks after leaving active duty, but that he injured his back while working. Later a statement from the carpet company was received, indicating the Veteran worked there around 1968-1970, and had resigned because he was unable to engage in manual labor because of back injuries sustained prior to that employment. In July 1995, Dr. Shams Qureshi of the Pain Center of North Jersey authored a reported identifying the Veteran as a patient since July 1994 who presented with a history of back pain “as a result of recurrence of pain due to an accident which occurred in November 1967 when he fell off the back of a military truck.” The doctor provided a positive nexus opinion for the identified lumbar diagnoses, with the caveat that “if the history is correct as given to me by the patient.” In an April 1996 follow-up opinion, Dr. Qureshi reaffirmed his positive nexus opinion following a review of the Veteran’s history, noting that the pre-service 1963 football injury did not present any residuals and that all current issues stemmed from his in-service fall off the truck. Columbia VAMC, and private treatment records detail a history of treatment for low back pain. Medical evidence from Palmetto Imaging shows degenerative changes of the lumbar spine in December 2009. A record from Jay Markowitz and Associates shows lumbago in January 2009, and from Dr. Reginald Parker shows low back pain in March 2010. In June 2011, a statement from Dr. Kristi Johnson, was received and provides a conclusion that the Veteran’s reported treatment visits during service are likely to have contributed to his current clinical status. The cited evidence is the report of sport related back injury in 1962 with documented treatment, visits in May and, June, and July 1966 with notes of lumbar strain, and a September 1967 visit for back pain. The Board notes however, there are no documented treatment records in the file pertaining to a 1962 back injury. At the August 2013 Board hearing, the Veteran reported that prior to service he injured his lower left back in a football injury. He did not seek any medical care prior to service. He then stated during service he injured his back when falling off a truck. In May 2015, the Veteran was afforded a VA examination. He reported the onset of low back pain several decades ago. He denied an injury during service. He sustained injury to the left costovertebral angle (CVA) in 1962 playing football. During service he was evaluated for a lumbar strain and CVA tenderness due to urogenital issues. On examination he had painful and decreased range of motion that resulted in functional loss. Diagnoses were listed as lumbar degenerative disc disease, lumbar facet syndrome and sacroiliac arthritis. The examiner concluded that his low back symptoms are less likely than not related to the low back pain he reported during service. The symptoms are due to chronic, degenerative changes and are not caused or exacerbated by the acute lumbar strain or urogenital complaints documented in service. It was also note he suffered a back injuries post-service in 1986, 1989 and again in 1994. An addendum opinion was rendered in August 2017. The examiner stated that there was no evidence of a chronic lumbar spine condition during the Veteran’s time in service. His current lumbar spine muscle spasms are secondary to his chronic lumbar spine degenerative condition. The diagnoses of lumbosacral sprain, S1 radiculopathy, myofascial pain syndrome, and trigger point condition, are all multiple ways to note the same condition, which is muscle spasms. The examiner stated he does not have true radiculopathy, but sciatica from the documented sacroiliac arthritis. None of the Veteran’s chronic conditions were present during service, or within one year of discharge. None of the aforementioned conditions are likely due to his time service. Analysis As identified by Dr. Qureshi in his July 1995 report, his opinion was contingent upon the history relayed by the Veteran. As with the opinions of Dr. Johnson, Dr. Qureshi did not address the Veteran’s medical history in its entirety, with no consideration of the post-service reports of accidents in the course of his career after the service. Specifically, the lack of any mention of the January 1986 New Jersey transit documentation identifying work-related back problems, significantly reduces the evidentiary weight assigned to either of these opinions. On the other hand, the VA examiner took the Veteran’s entire health history into account when offering her opinion, which found the in-service strain to be an acute event, and identified other causes likely responsible for the Veteran’s current condition. Thus, the most probative evidence of record are the VA examiner opinions. Regarding the other queries posited by the JMR (continuity of arthritic symptoms since service, probative weight of the denial of symptoms upon discharge in 1968 versus the statements and testimony in support of the claim thereafter, and the credibility of the Veteran’s claimed onset of symptoms following a 1967 fall off of a truck), the evidence casts doubt on the Veteran’s credibility relating to these intertwined concerns. Namely, the Veteran’s “fell off the back of a truck in 1967” narrative first appeared with his July 1990 application to reopen the back-disability claim. While the Veteran made prior applications for benefits in 1969 and in the 1970’s to reopen the spinal claim, he did not plead the matter with any specificity, nor cooperate with the VA and submit to an examination until the 1990 application. Following the Veteran’s two isolated complaints of back pain in 1966 and 1967, the Veteran denied any issues upon discharge, indicating the prior events were acute and transitory, (as they were characterized by the VA examiner), and thus there were no concerns upon separation in 1968. Absent generic claims of a “back injury” in February 1969 and July 1977, there are no medical records or detailed statements associated with the record regarding the Veteran’s back for almost twenty years, until January 1986. The Board affords great probative value to the New Jersey Transit medical records which indicate that the Veteran first suffered an injury in January 1986, which he repeatedly reported as the onset of his back trouble in April 1989 and March 1991. The Board finds the Veteran's contemporaneous statements made to treating providers more credible as to the onset of his back problems as they were made with the intent of seeking health benefits rather than the latter statements made in conjunction with the claim, which were made with the intent of seeking monetary benefits. Such contemporaneous evidence is generally accorded a high degree of probative value, especially as opposed to those generated during the course of the Veteran's current attempt to secure service connected compensation. See, e.g., Rucker v. Brown, 10 Vet. App. 67, 73 (1997); see also Flynn v. Brown, 6 Vet. App. 500, 503 (1994). In light of the above, the Board finds that there is no credible lay evidence that the Veteran sustained a chronic back disorder in service from which he has had continuous problems ever since service. See Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996); (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). The Board finds that the Veteran's statements as to continuity of back symptoms since active service are not credible. In other words, continuity of back symptoms since active service is not shown, and service connection is not warranted on this basis. In this case, the Board has carefully considered the evidence presented by the Veteran, but finds that the weight of the competent and probative evidence does not link the back disorders to his military service. Early service treatment records identify low back treatment, but upon discharge and for the better part of the next two decades the records are negative for complaints, treatment or diagnoses of a back disorder and the this is affirmatively linked by the Veteran’s own report of a post-service work accident. In sum, the most probative evidence of record does not support the Veteran's contentions that he has a back disorder that was incurred in service. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Marcus J. Colicelli The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.